Open Decision Ledger · Criminal law
Reopening sentencing argument after new adverse material
Supreme Court, Sept. 30, 2021, 2021Do5777 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 아동·청소년의성보호에관한법률위반(강간등치상)
Official text on the National Law Information Center
Question
Where material adverse to the defendant on sentencing is submitted to the trial court after the close of argument, must the court reopen the argument and give the defendant a chance to answer before treating it as a decisive change in the aggravating circumstances?
Holding
It was. The trial court must reopen the argument and give the defendant a chance to comment, so that the right of defence is practically secured. The appellate court could not take the victim's death certificate submitted after the close of argument, find as a fact that the victim took her life because of the pain caused by the crime, and use that as the core aggravating condition to raise the sentence from four to nine years, beyond the recommended range, without any adversarial exchange. The Supreme Court found no error in the conviction itself, but reversed the whole judgment and remanded the case.
Points at issue, verbatim
원심의 조치에 변론종결 후 피고인에게 불리한 양형자료가 제출된 경우 사실심법원이 취해야 할 양형심리절차에 관한 법리를 오해한 잘못이 있다고 한 사례
Unofficial English translation
A case holding that there was an error in the court below's action in misunderstanding the legal principle concerning the sentencing deliberation procedures that a court of fact must follow where sentencing data unfavorable to the defendant are submitted after the close of oral argument
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 서울고등법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Seoul High Court.
Form of the test
Elements stated Stated in the decision
변론을 재개하여 그 양형자료에 대하여 피고인에게 의견진술 기회를 주는 등 필요한 양형심리절차를 거침으로써 피고인의 방어권을 실질적으로 보장해야 한다.
Unofficial English translation
By resuming oral argument and going through the necessary sentencing deliberation procedures, such as affording the defendant an opportunity to state his/her opinion regarding the sentencing data, the defendant's right of defense must be substantively guaranteed.
Factors
- 사실심법원이 갖는 양형에 관한 재량의 내재적 한계
- 피고인에게 불리한 새로운 양형조건에 관한 자료가 법원에 제출된 경우
- 변론종결 후 제출된 피해자의 사망진단서를 근거로
- 변론을 재개하여 새로운 양형조건에 관하여 추가로 심리하지 않은 채
- 양형기준의 권고형을 넘어 징역 9년을 선고한 사안에서
Unofficial English translation
• Inherent limits of the discretion in sentencing exercised by the court of fact
• Where data concerning new sentencing circumstances unfavorable to the defendant are submitted to the court
• On the basis of the victim's certificate of death submitted after the close of oral argument
• Without reopening oral argument to additionally examine new sentencing circumstances
• In a case where 9 years' imprisonment was imposed, exceeding the recommended sentence under the Sentencing Guidelines
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2008. 5. 29. 선고 2008도1816 판결 등 참조
Unofficial English translation
See Supreme Court Decision 2008Do1816 decided May 29, 2008, etc.
Decisions referred to
[1] 대법원 2008. 5. 29. 선고 2008도1816 판결 / [2] 대법원 2021. 6. 10. 선고 2020도15891 판결(공2021하, 1308)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
Once the argument is reopened, must the court examine the death certificate and the victim's written opinion as evidence and allow the defence to test them, or is an opportunity to state an opinion enough?
A later Supreme Court decision on the depth of the hearing required after reopening argument would call for this entry to be read again. So would an amendment to Articles 293 and 294 of the Criminal Procedure Act or to Articles 132-2(2) and 134-11(2) and (3) of the Criminal Procedure Rules, on which the Court relied, and the remand judgment of the Seoul High Court in this case will show how the reopened hearing was conducted.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 7 of the 8 axes; the readings differed on axis 8 (open question and revisit condition).
Axis 8 (Open question and revisit condition): Primary “Once the argument is reopened, must the court examine the death certificate and the victim's written opinion as evidence and allow the defence to test them, or is an opportunity to state an opinion enough?” vs Independent “What evidence would suffice on remand to establish a connection between the offense and the victim's death for sentencing purposes?”
The primary reading asks whether the court must examine the new evidence and let the defence test it, while the independent reading asks what evidence would suffice on remand to prove causation between the offense and the death.
원심의 조치에 변론종결 후 피고인에게 불리한 양형자료가 제출된 경우 사실심법원이 취해야 할 양형심리절차에 관한 법리를 오해한 잘못이 있다고 한 사례Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Seoul High Court, Chuncheon Bench, in its judgment of 21 April 2021 (2020No192), convicted the defendant of the same offence as the first instance but set aside the first-instance sentence of four years' imprisonment and forty hours of the education order and imposed nine years' imprisonment and eighty hours. It reasoned that the victim's extreme choice could be nothing other than the result of the physical and mental pain suffered through the defendant's crime, and so departed from the basic recommended range of five to eight years' imprisonment under the sentencing guidelines. It did not reopen the argument.
Supreme Court standard: The Supreme Court found no error on the first two grounds: the findings did not breach the presumption of innocence or the rules of logic and experience, and did not misstate the law on quasi-rape and rape causing injury. On the third ground it held that the victim's death was confirmed only by the material submitted on 8 April 2021, after the close of argument on 17 March 2021 and shortly before judgment on 21 April 2021, with no adversarial exchange at all on the relation between the death and the crime. The court below had to reopen the argument and hear the defendant, and its failure to do so was a misstatement of the law on sentencing procedure that affected the judgment, so the whole judgment was reversed and the case remanded to the Seoul High Court, by unanimous opinion.
Distinguishing conditions
- New sentencing material submitted before the close of argument, so that the defendant can answer it in the ordinary course of the trial.
- A case in which the trial court reopened the argument and gave the defendant an opportunity to state an opinion on the new material, since that is the measure the Court required.
- Material on sentencing conditions that is not adverse to the defendant, since the Court's rule is stated for material that counts against the defendant.
Record verification notes
Set the dates against each other: the close of argument, the date the new material reached the court, and the date of judgment, as here 17 March, 8 April and 21 April 2021. Then check the file for any reopening of the argument or any statement taken from the defendant, and for any adversarial exchange on the link between the new material and the crime. Finally compare the sentence imposed with the recommended range and with Article 383(iv) of the Criminal Procedure Act, since a sentencing complaint is ordinarily entertained only in the categories that provision lists.
From the official text
Points at issue
[1] 사실심법원이 갖는 양형에 관한 재량의 내재적 한계 [2] 사실심 변론종결 후 검사나 피해자 등에 의해 피고인에게 불리한 새로운 양형조건에 관한 자료가 법원에 제출된 경우, 사실심법원이 취할 조치 [3] 아동·청소년의 성보호에 관한 법률 위반(강간등치상)죄로 1심에서 유죄가 인정되어 징역 4년을 선고받은 피고인의 항소심에서, 변론종결 후 제출된 피해자의 사망진단서를 근거로 피해자가 피고인의 범행으로 인한 고통 때문에 자살하였다고 단정한 뒤, 변론을 재개하여 새로운 양형조건에 관하여 추가로 심리하지 않은 채 이를 가중적 양형조건의 중대한 변경 사유로 보아 제1심판결을 파기하고 양형기준의 권고형을 넘어 징역 9년을 선고한 사안에서, 원심의 조치에 변론종결 후 피고인에게 불리한 양형자료가 제출된 경우 사실심법원이 취해야 할 양형심리절차에 관한 법리를 오해한 잘못이 있다고 한 사례
Unofficial English translation
[1] Inherent limits of the discretion in sentencing exercised by the court of fact [2] Measures to be taken by the court of fact where, after the close of oral argument at the fact-finding instance, data concerning new sentencing circumstances unfavorable to the defendant are submitted to the court by the prosecutor, the victim, or others [3] A case holding that, in the appellate instance involving a defendant who, at the court of first instance, was found guilty of a violation of the Act on the Protection of Children and Youth against Sexual Abuse (Rape, etc., Causing Injury) and sentenced to 4 years' imprisonment, where the court, on the basis of the victim's certificate of death submitted after the close of oral argument, conclusively determined that the victim had committed suicide due to suffering caused by the defendant's crime, and, without reopening oral argument to additionally examine new sentencing circumstances, regarded this as a ground for a serious change in the aggravating sentencing circumstances, reversed the judgment of the court of first instance, and imposed 9 years' imprisonment, exceeding the recommended sentence under the Sentencing Guidelines, there was an error in the court below's action in misunderstanding the legal principle concerning the sentencing deliberation procedures that a court of fact must follow where sentencing data unfavorable to the defendant are submitted after the close of oral argument
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결을 파기하고, 사건을 서울고등법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Seoul High Court.
Provisions referred to
[1] 형법 제51조, 형사소송법 제383조 제4호 [2] 헌법 제12조 제1항, 제27조, 형사소송법 제275조, 제293조, 제294조, 제307조, 제308조, 형사소송규칙 제132조의2 제2항, 제134조의11 제2항, 제3항 [3] 헌법 제12조 제1항, 제27조, 형사소송법 제275조, 제293조, 제294조, 제307조, 제308조, 형사소송규칙 제132조의2 제2항, 제134조의11 제2항, 제3항
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